Hua v Roads and Maritime Services

[2016] NSWLEC 21

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hua v Roads and Maritime Services [2016] NSWLEC 21
Hearing dates:	18 March 2016
Date of orders:	18 March 2016
Decision date:	18 March 2016
Jurisdiction:	Class 3
Before:	Craig J
Decision:	1 Being satisfied that good cause has been shown by the applicants for their failure to lodge the present application within 90 days after receiving a compensation notice from the respondent, I determine that the Court may proceed to hear and determine their claim for compensation under s 66(2) of the Land Acquisition (Just Terms Compensation) Act 1991. 2 Stand over the proceedings to Friday 1 April 2016 for directions.
Catchwords:	PROCEDURE – application to extend time for filing of compensation objection - s 66(3) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) - whether applicants satisfied the Court that they had good cause for failure to lodge objection within time - whether error of solicitor establishes good cause - genuine mistake - conduct of applicants during the 90 day period - no prejudice suffered by the respondent - appropriate to allow matter to proceed to determination
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
Cases Cited:	Leclercq v Essential Energy [2015] NSWLEC 50 Sydney Nationwide Realty Pty Ltd v Sydney Metro ; IAE EDU NET Pty Limited v Sydney Metro [2011] NSWLEC 19
Category:	Procedural and other rulings
Parties:	Peter Han Binh Hua (First Applicant) Man Du Hua (Second Applicant) Roads and Maritime Services (Respondent)
Representation:	Counsel: F J Berglund (Applicants) K Davis (solicitor) (Respondent)   Solicitors: Solomon Tudehope Solicitors (Applicants) Corrs Chambers Westgarth (Respondent)
File Number(s):	30130 of 2016

EX TEMPORE Judgment

1. 1   Peter Han Binh Hua and Man Du Hua are the proprietors of land known as 230 Rickard Road, Leppington (the Land).

2. 2   By acquisition notice published in the Gazette on 26 June 2015, Roads and Maritime Services, the respondent in these proceedings, compulsorily acquired part of that Land. An application Class 3, objecting to the compensation offered by the respondent, was filed in this Court on 19 February 2016.

3. Before me is a notice of motion by which the applicants seek an order enabling them to prosecute these proceedings given that, as will shortly be made apparent, the commencement of their proceedings did not occur within the time allowed by the relevant statutory provisions. The motion is supported by an affidavit of Meyer Solomon affirmed on 15 February 2016. Mr Solomon is the solicitor acting for the applicants.

4. As I have said, the acquisition notice was published on 26 June 2015. On 9 September 2015 the respondent gave to the applicants a compensation notice under s 42 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Compensation Act), stating the amount of compensation that had been determined by the Valuer-General in accordance with the Act and advising that the compensation stated in the notice was that which was offered by the respondent as compensation for acquisition of their interest in the Land.

5. At that time the applicants had engaged Mr Solomon as their solicitor. Following receipt of the compensation notice, it was given by them to Mr Solomon so as to advise them upon the response that they should make to the offer of compensation. According to the evidence before me in support of the present motion, Mr Solomon had in fact been engaged some time before the acquisition occurred, as a consequence of the respondent having earlier indicated to the applicants its intention to acquire part of their land for proposed road works.

6. The need for what might be described as the leave that is presently sought, is a consequence of the provisions of ss 66(1) and 66(3) of the Compensation Act. Subsection (1) of s 66 provides that a person who has claimed compensation may, within 90 days after receiving a compensation notice, lodge with this Court an objection to the amount of compensation offered. By subs (2) of that section, the Court is then to hear and dispose of that claim.

7. In the present case the objection, in order to be sustained under subs (1), was required to be lodged on or before 8 December 2015. As I have indicated, the Class 3 application by way of objection was not filed until 19 February 2016 so that it was by then well out of time.

8. A failure to have lodged the objection within 90 days is further addressed in s 66(3) of the Compensation Act. The subsection provides:

“(3)   A person who does not lodge an objection within the 90-day period and who is taken to have accepted the offer of compensation under section 45 may nevertheless lodge an objection under this section, but the Land and Environment Court is not to hear and dispose of the person’s claim for compensation unless satisfied that there is good cause for the person’s failure to lodge the objection within that period.”

9. It is the satisfaction of the requirement to show “good cause” to which the evidence of Mr Solomon is addressed. In order to establish good cause the focus must generally be upon the actions of the party seeking the indulgence during the 90 day period that is provided for the making of the objection. In this case those actions can be simply stated. Mr Solomon, having been given the acquisition notice and the compensation notice by the applicants, did engage with the respondent by correspondence, indicating that the offer of compensation made was not accepted. However, he acknowledges that he overlooked the circumstance that within the 90 day period he was required to commence proceedings under s 66(1) in order to ensure that the unqualified right to apply to the Court to determine compensation was exercised.

10. The explanation that is offered by Mr Solomon is that he simply overlooked the requirement, notwithstanding the exchange of correspondence concerning the quantum of compensation. It was not until he sought the advice of counsel, first in December of last year and then again in February that he came to appreciate that the objection to be made on behalf of his clients was then outside the 90 day period.

11. The expression “good cause” as used in s 66(3) of the Compensation Act is not defined in that Act. As I have said, in the context of the subsection, the “good cause” about which the Court is to be satisfied is to be directed to the failure to lodge an objection to an offer of compensation within the requisite period. That statutory provision, so it seems to me, is to be understood as requiring a legally acceptable or sufficient explanation for the failure of the applicants to have commenced proceedings within time (see Sydney Nationwide Realty Pty Ltd v Sydney Metro; IAE EDU NET Pty Limited v Sydney Metro [2011] NSWLEC 19.

12. As I observed in Leclercq v Essential Energy [2015] NSWLEC 50, while the focus will be upon the conduct of an applicant during the 90 day period, other considerations may be relevant to the adequacy or sufficiency of explanation that is offered in order to persuade the Court to exercise the discretion provided under s 66(3). In principle these other factors will include the length of time by which the 90 day period is exceeded, prejudice to the respondent occasioned by delay and demonstration on the part of the applicant of an arguable case justifying the continuation of the proceedings. The last factor is unlikely to present a difficulty to an applicant in the position of the present applicants, given their statutory entitlement to be paid compensation following acquisition of their land.

13. In the present case I am satisfied that good cause has been shown. While the period by which the 90 day period was exceeded was a little over two months, no prejudice is claimed on the part of the respondent by reason of that delay. That position is understandable. The evidence reveals, as I have indicated, that during the 90 day period the applicants made clear that they did not accept the offer of compensation that had been made to them. They continued to negotiate to resolve their claim for a higher sum.

14. I accept that Mr Solomon’s mistake was a genuine mistake. Importantly, the consequence of his unfortunate, but understandable oversight, should not be visited upon the applicants so as to deny them the right to proceed with their objection to the compensation offered They provided timely instructions to their solicitor to advise them. I should also add that important to my conclusion is the circumstance that the respondent does not oppose the application presently made.

15. For all these reasons, I make the following determination:

1. Being satisfied that good cause has been shown by the applicants for their failure to lodge the present objection within 90 days after receiving a compensation notice from the respondent, I determine that the Court may proceed to hear and determine their claim for compensation under s 66(2) of the Land Acquisition (Just Terms Compensation) Act 1991.

2. Stand over the proceedings to Friday 1 April 2016 for directions.

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Decision last updated: 23 March 2016